EU copyright reform In 2016 the European Commission published proposals for
- a Directive on Copyright in the Digital Single Market. As it navigates the EU legislative process the proposal continues to excite controversy, mainly over the proposed publishers’ ancillary right and the clash between Article 13 and the ECommerce Directive’s intermediary liability provisions.
- a Regulation extending the country of origin provisions of the Satellite and Cable Broadcasting Directive to broadcasters’ ancillary online transmissions. Most of the Commission’s proposal was recently rejected by the European Parliament.
- legislation to mandate a degree of online content portability within the EU. The Regulation on cross-border portability of online content services in the internal market was adopted on 14 June 2017 and will apply from 20 March 2018.
EU online business As part of its Digital Single Market proposals the European Commission published a proposal for a Regulation on “Geo-blocking and other forms of discrimination”. It aims to prevent online retailers from discriminating, technically or commercially, on the basis of nationality, residence or location of a customer. Political agreement was reached in November 2017. The Regulation would come into force nine months from publication in the EU Official Journal.
Telecoms privacy The proposed EU ePrivacy Regulation continues to make a choppy voyage through the EU legislative process.
Intermediary liability On 28 September 2017 the European Commission published a Communication on Tackling Illegal Content Online. This is a set of nominally voluntary guidelines under which online platforms would adopt institutionalised notice and takedown/staydown procedures and proactive content filtering processes, based in part on a system of ‘trusted flaggers’. The scheme would cover every kind of illegality from terrorist content, through copyright to defamation. The Commission aims to determine by May 2018 whether additional legislative measures are needed.
Politicians have increasingly questioned the continued appropriateness of intermediary liability protections under the Electronic Commerce Directive. The UK Committee on Standards in Public Life has suggested that Brexit presents an opportunity to depart from the Directive. The government has published its Internet Safety Strategy Green Paper. More to come in 2018.
The appeal to the UK Supreme Court in Cartier on who should bear the cost of complying with site blocking injunctions should be heard during 2018.
TV-like regulation of the internet The review of the EU Audio Visual Media Services Directive continues. The Commission proposal adopted on 25 May 2016 would further extend the Directive’s applicability to on-demand providers and internet platforms.
Pending CJEU copyright cases More copyright references are pending in the EU Court of Justice. Issues under consideration include whether the EU Charter of Fundamental Rights can be relied upon to justify exceptions or limitations beyond those in the Copyright Directive; and whether a link to a PDF amounts to publication for the purposes of the quotation exception (Spiegel Online GmbH v Volker Beck, C-516/17). Another case on the making available right (Renckhoff, C-161/17) is pending. It is also reported that the Dutch Tom Kabinet case on secondhand e-book trading has been referred to the CJEU.
ECommerce Directive Two cases involving Uber are before the CJEU, addressing in different contexts whether Uber’s service is an information society service within the Electronic Commerce Directive. Advocate General Szpunar gave an Opinion in Asociación Profesional Élite Taxi v Uber Systems Spain, C-434/15 on 11 May 2017 and in Uber France SAS, Case C‑320/16 on 4 July 2017.
Online pornography The Digital Economy Act 2017 grants powers to a regulator (recently formally proposed to be the British Board of Film Classification) to determine age control mechanisms for internet sites that make ‘R18’ pornography available; and to direct ISPs to block such sites that either do not comply with age verification or contain material that would not be granted an R18 certificate. The DCMS has published documents including draft guidance to the Age Verification Regulator.
Cross-border liability and jurisdiction Ilsjan (Case C-194/16) is another CJEU reference on the Article 7(2) (ex-Art 5(3)) tort jurisdiction provisions of the EU Jurisdiction Regulation. The case concerns a claim for correction and removal of harmful comments. It asks questions around mere accessibility as a threshold for jurisdiction (as found in Pez Hejduk) and the eDate/Martinez ‘centre of interests’ criterion for recovery in respect of the entire harm suffered throughout the EU. The AG Opinion in Ilsjan was delivered on 13 July 2017.
The French CNIL/Google case on search engine de-indexing has raised significant issues on extraterritoriality, including whether Google can be required to de-index on a global basis. The Conseil d’Etat has referred various questions about this to the CJEU.
Online state surveillance The UK’s Investigatory Powers Act 2016 (IP Act), partially implemented in 2016 and 2017, is expected to come fully in force in 2018. However the government has acknowledged that the mandatory communications data retention provisions of the Act are unlawful in the light of the Watson/Tele2decision of the CJEU. It has launched a consultation on proposed amendments to the Act, including a new Office for Communications Data Authorisation to approve requests for communications data . Meanwhile a reference to the CJEU from the Investigatory Powers Tribunal questions whether the Watson decision applies to national security, and if so how.
The IP Act (in particular the bulk powers provisions) may also be indirectly affected by cases in the CJEU (challenges to the EU-US Privacy Shield), in the European Court of Human Rights (various NGOs challenging the existing RIPA bulk interception regime) and by a judicial review by Privacy International of an Investigatory Powers Tribunal decision on equipment interference powers. However in that case the Court of Appeal has held that the Tribunal decision is not susceptible of judicial review. One of the CJEU challenges to the EU-US Privacy Shield was held by the General Court on 22 November 2017 to be inadmissible for lack of standing.
Liberty’s challenge by way of judicial review to the IP Act bulk powers and data retention powers is pending.
Compliance of the UK’s surveillance laws with EU Charter fundamental rights will be a factor in any data protection adequacy decision that is sought once the UK becomes a non-EU third country post-Brexit.
This post originally appeared on the Cyberleagle blog and is reproduced with permission and thanks